Citation Nr: 0613148
Decision Date: 05/05/06 Archive Date: 05/15/06
DOCKET NO. 04-33 449 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disorder, claimed as a nervous condition.
2. Entitlement to an increased rating for pseudofolliculitis
barbae, currently rated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Simone C. Krembs, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1963 to April
1964.
This matter comes before the Board of Veterans' Appeals
(Board) from a February 2004 rating decision of a Department
of Veterans Affairs (VA) Regional Office (RO) that denied
service connection for an acquired psychiatric disorder, and
denied an increased rating for pseudofolliculitis barbae,
currently rated as 10 percent disabling. In January 2006,
the veteran testified before the Board at a hearing held at
the RO.
The issue of entitlement to an increased rating for
pseudofolliculitis barbae, currently rated as 10 percent
disabling, is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
when further action is required of him.
FINDINGS OF FACT
1. The veteran's diagnosed personality disorder is not a
disability for VA compensation purposes.
2. The veteran does not have a current diagnosis of a
psychiatric disorder, nor has any psychiatric disorder been
related to his active service.
CONCLUSION OF LAW
A psychiatric disorder was not incurred in or aggravated by
the veteran's active service. 38 U.S.C.A. §§ 1110, 1131,
5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303.
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000). Service connection for certain chronic diseases,
including psychoses, will be rebuttably presumed if they are
manifest to a compensable degree within one year following
active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137;
38 C.F.R. §§ 3.307, 3.309.
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection. The presumptive
provisions of the statute and VA regulations implementing
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. 38 C.F.R. § 3.303(d).
For the showing of chronic disease in service, there must be
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time. If chronicity in service is not
established, evidence of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
The veteran's service medical records show that in March 1964
he was referred for neuropsychiatric evaluation, as his
superior officers felt that he had a "belligerent attitude
to all personnel" with whom he came in contact.
Neuropsychiatric examination, however, did not reveal any
abnormalities. The diagnostic impression was "immature
personality." On examination in April 1964, prior to his
discharge from service, his psychiatric examination was
normal. The evidence demonstrates that chronicity in service
is not established in this case. 38 C.F.R. § 3.303(b).
Post-service medical records are negative for any treatment
or complaints regarding any psychiatric condition. In view
of the lengthy period without treatment, there is no evidence
of a continuity of symptomatology, and this weighs heavily
against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed.
Cir. 2000) (service incurrence may be rebutted by the absence
of medical treatment for the claimed condition for many years
after service).
The veteran underwent VA psychiatric examination in November
2003. At that time, the veteran reported that he had never
received psychiatric treatment. In discussing the history of
his claimed psychiatric disorder, the veteran reported that
he had had a "nervous breakdown" in service, but did not
name any stressors aside from having difficulty completing
boot camp and difficulty in getting along with authority
figures. The veteran denied presently experiencing
depression or anxiety, and stated that he generally slept
well. His primary problem was difficulty with authority
figures and getting along with people. He stated that he
tended to get irritable and angry quickly. His problems with
authority figures over the years had led to difficulty in
holding jobs, as he could often not get along with his
supervisors. At the time of the examination, he had been
unemployed for a year, but was looking for work. With regard
to social interaction, the veteran stated that he had been
married for 38 years, and that he had three children. He
described his relationship with his family as average. He
stated that he had a few friends with whom he kept in touch,
and also reported keeping in touch with his brothers and a
few other family members. He denied abuse of drugs or
alcohol, and reported no history of legal trouble. Mental
status examination revealed a blunted affect and neutral
mood. His speech was noted to be normal, as were his thought
content and processes. He denied suicidal and homicidal
ideations. Insight and judgment were noted to be fair, as
was his impulse control. The examiner noted that there were
no appreciable problems. The veteran was noted to be
adequately groomed and cooperative throughout the
examination. The examiner concluded that the veteran had
symptoms of a personality disorder, which made it difficult
for him to get along with bosses and supervisors, and that he
had therefore had trouble working. He was also noted to have
a limited social network. These symptoms, however, were not
found to be a part of any psychiatric disorder. The primary
diagnosis was "None." Otherwise, the veteran was noted to
have a personality disorder, not otherwise specified.
A personality disorder is not recognized as a disability for
which VA compensation may be granted. 38 C.F.R. §§ 4.9,
4.127 (2005). As personality disorders are specifically
excluded as a disease or injury for which service connection
may be granted, the veteran's claim for service connection
for a psychiatric disorder is not warranted on the basis of
such a diagnosis.
Nor can the veteran's claim be granted on any other basis.
The weight of the medical evidence demonstrates that the
veteran does not currently have a psychiatric disorder.
In recent statements in support of his claim, in testimony,
and in reporting history to examiners, the veteran has
attributed his claimed psychiatric disorder to service;
however, as a layperson, the veteran is not competent to give
a medical opinion on diagnosis, causation, or aggravation of
a medical condition. See Bostain v. West, 11 Vet. App. 124,
127 (1998).
As the preponderance of the evidence is against the claim for
service connection, the benefit-of-the-doubt rule does not
apply, and the claim must be denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159
(2005). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." Pelegrini v. Principi, 18
Vet. App. 112 (2004).
Here, the RO sent correspondence in November 2003; and a
rating decision in February 2004. These documents discussed
specific evidence, the particular legal requirements
applicable to the claim, the evidence considered, the
pertinent laws and regulations, and the reasons for the
decisions. VA made all efforts to notify and to assist the
appellant with regard to the evidence obtained, the evidence
needed, the responsibilities of the parties in obtaining the
evidence, and the general notice of the need for any evidence
in the appellant's possession. The Board finds that any
defect with regard to the timing or content of the notice to
the appellant is harmless because of the thorough and
informative notices provided throughout the adjudication and
because the appellant had a meaningful opportunity to
participate effectively in the processing of the claim with a
readjudication of the claim by the RO in a September 2004
supplemental statement of the case, subsequent to receipt of
the required notice.
There has been no prejudice to the appellant, and any defect
in the timing or content of the notices has not affected the
fairness of the adjudication. See Mayfield v. Nicholson,
19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157,
__ F.3d __, 2006 WL 861143 (Fed. Cir. Apr. 5, 2006)
(specifically declining to address harmless error doctrine);
see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).
All relevant, identified, and available evidence has been
obtained, and VA has notified the appellant of any evidence
that could not be obtained. The appellant has not referred
to any additional, unobtained, relevant, available evidence
and VA has obtained a medical examination in relation to this
claim. VA has satisfied both the notice and duty to assist
provisions of the law.
ORDER
Service connection for an acquired psychiatric condition is
denied.
REMAND
Additional development is needed prior to further disposition
of the claim for an increased rating for pseudofolliculitis
barbae.
The veteran's pseudofolliculitis barbae has been rated as 10
percent disabling under Diagnostic Code 7806. Diagnostic
Code 7806 provides for a 10 percent rating where there is
dermatitis or eczema over at least 5 percent, but less than
20 percent, of the entire body, or at least 5 percent, but
less than 20 percent, of exposed areas affected, or;
intermittent systemic therapy such as corticosteroids or
other immunosuppressive drugs required for a total duration
of less than six weeks during the past 12-month period. A 30
percent rating is warranted for coverage of 20 to 40 percent
of the entire body or 20 to 40 percent of exposed areas
affected, or; where systemic therapy such as corticosteroids
or other immunosuppressive drugs were required for a total
duration of six weeks or more, but not constantly, during the
past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code
7806.
Alternatively, the criteria of Diagnostic Code 7806 provide
that eczema or dermatitis may be rated as disfigurement of
the head, face, or neck under Diagnostic Code 7800, or scars
under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805 if
such aspect was the more predominant disability. 38 C.F.R. §
4.118, Diagnostic Code 7806 (2005). Scarring causing
disfigurement of the head face or neck is rated with
reference to the following 8 characteristics of
disfigurement:
1) Scar 5 or more inches (13 or more cm.) in length; 2) Scar
at least one-quarter inch (0.6 cm.) wide at widest part; 3)
Surface contour of scar elevated or depressed on palpation;
4) Scar adherent to underlying tissue; 5) Skin hypo-or hyper-
pigmented in an area exceeding six square inches (39 sq.
cm.); 6) Skin texture abnormal (irregular, atrophic, shiny,
scaly, etc.) in an area exceeding six square inches (39 sq.
cm.); 7) Underlying soft tissue missing in an area exceeding
six square inches (39 sq. cm.); 8) Skin indurated and
inflexible in an area exceeding six square inches (39 sq.
cm.).
A minimum 10 percent rating is provided for having one of the
above characteristics of disfigurement. 38 C.F.R. § 4.118,
Diagnostic Code 7800 (2005). A 30 percent rating is warranted
with visible or palpable tissue loss and either gross
distortion or asymmetry of one feature or paired set of
features (nose, chin, forehead, eyes (including eyelids),
ears (auricles), cheeks, lips), or; with two or three
characteristics of disfigurement.
On VA examination in October 2003, the veteran's claims
folder was unavailable for review. Accordingly, the examiner
was unable to discern the type and extent of treatment the
veteran had received over the 12 months prior to the date of
the examination. Specifically, the examiner was unable to
discern whether the veteran had been prescribed
corticosteroids for his pseudofolliculitis barbae. On
remand, it should be clarified as to whether, and if so, for
how long, the veteran required systemic therapy such as
corticosteroids or other immunosuppressive drugs over the
past 12 months.
Additionally, on VA examination in October 2003, the veteran
was noted to have hyperpigmented papules on his
"cheeks/neck." The examiner did not provide any
measurements as to the total area affected. Accordingly, the
Board is unable to determine whether there is disfigurement
consisting of hyper-pigmented skin in an area exceeding six
square inches (39 sq. cm.). The Board also finds that
because the veteran's face is the area of skin affected in
this case, color photographs of the veteran's current
condition would be helpful in determining his current level
of disability.
Finally, the Board notes that VA's duty to assist includes
the conduct of a thorough and comprehensive medical
examination. Robinette v. Brown, 8 Vet. App. 69 (1995).
When available evidence is too old for an adequate evaluation
of the veteran's current condition, VA's duty to assist
includes providing a new examination. Weggenmann v. Brown, 5
Vet. App. 281, 284 (1993). Although the October 2003 VA
examination is not unduly remote, the veteran has indicated
that his condition has worsened since the date of that
examination. Because there may have been a significant
change in the condition of the veteran's pseudofolliculitis
barbae disability, a new examination is in order.
Accordingly, the case is REMANDED for the following actions:
1. Schedule the veteran for a VA skin
examination to determine the severity
of his service-connected
pseudofolliculitis barbae. The claims
folder must be made available to the
examiner for review. In particular,
the examiner should determine whether
the veteran required any systemic
therapy such as corticosteroids or
other immunosuppressive drugs over the
past 12 months, and address the extent
of any hypo- or hyperpigmented skin,
and any other disfigurement due to the
pseudofolliculitis barbae, including:
1) Scar 5 or more inches (13 or more
cm.) in length; 2) Scar at least one-
quarter inch (0.6 cm.) wide at widest
part; 3) Surface contour of scar
elevated or depressed on palpation; 4)
Scar adherent to underlying tissue; 5)
Skin hypo-or hyper-pigmented in an area
exceeding six square inches (39 sq.
cm.); 6) Skin texture abnormal
(irregular, atrophic, shiny, scaly,
etc.) in an area exceeding six square
inches (39 sq. cm.); 7) Underlying soft
tissue missing in an area exceeding six
square inches (39 sq. cm.); 8) Skin
indurated and inflexible in an area
exceeding six square inches (39 sq.
cm.). Color photographs of the
veteran's current condition should be
obtained. A complete rationale for all
opinions should be provided.
2. Then, after ensuring any other
necessary development has been
completed, readjudicate the claim for
an increased rating for the service-
connected pseudofolliculitis barbae.
If the action remains adverse to the
veteran, provide the veteran and his
representative with a supplemental
statement of the case and allow him an
appropriate opportunity to respond
thereto. Thereafter, the case should
be returned to this Board for the
purpose of appellate disposition, if in
order. The Board intimates no opinion
as to the ultimate outcome of this
case.
The appellant has the right to submit additional evidence and
argument on the matter the Board is remanding. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
RONALD W. SCHOLZ
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs